U.S. v. Derr, 91-3309

• Decision Date: 20 April 1993
• Docket Number: No. 91-3309,91-3309
• Citation: 301 U.S.App. D.C. 60,990 F.2d 1330
• Parties: , 37 Fed. R. Evid. Serv. 1308 UNITED STATES of America v. Tyrone DERR, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1330

990 F.2d 1330

301 U.S.App.D.C. 60, 37 Fed. R. Evid. Serv. 1308

UNITED STATES of America v. Tyrone DERR, Appellant.

No. 91-3309.

United States Court of Appeals, District of Columbia Circuit.

Argued March 4, 1993.

Decided April 20, 1993.

Joseph R. Conte, Washington, DC (appointed by this Court), for appellant.

Steven J. Durham, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty. at the time the brief was filed, John R. Fisher, Elizabeth Trosman, and Per A. Ramfjord, Asst. U.S. Attys., Washington, DC, were on the brief, for appellee.

Before MIKVA, Chief Judge, WALD and BUCKLEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD. WALD, Circuit Judge:

Tyrone Derr was convicted of possessing cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii), and of using a firearm in relation to that possession, in violation of 18 U.S.C. § 924(c)(1). On appeal, Derr claims: (1) the district court improperly limited his cross-examination of a government witness; (2) the government breached its duty to provide him with material, exculpatory evidence before trial; and (3) the government produced insufficient evidence at trial to support the jury's verdict that he "used" a firearm in relation to his possession of cocaine. We agree that no reasonable juror could have concluded that Derr "used" a firearm to facilitate his drug possession, but reject Derr's other contentions; accordingly, we reverse his firearms conviction and affirm his drug possession conviction.

I. BACKGROUND

On January 14, 1991, relying on an informant's tip that James Lanham possessed a .9 millimeter pistol and a .30 caliber rifle at 911 Varney Street, S.E., apartment 22, the Metropolitan Police Department obtained a warrant to search that residence. At that time, James Lanham lived in apartment 22 with his brother Michael Lanham, his cousin Chay Rawls, and their grandmother Hilda Meredith. Appellant Derr, a friend of Michael Lanham, sometimes stayed there as well, mostly on weekends. The police arrived to execute the warrant at about 9:45 a.m. on January 23, 1991; the officers found Derr, clad in boxer shorts, sleeping in one of the bedrooms. Chay Rawls and an unknown woman were sleeping in another bedroom, and James Lanham was dozing in a third.

After waking all the occupants and securing them in the living room, ¹ the officers began their search of the apartment. In the bedroom where Derr had been sleeping, Detective James Trainum found a pager and a set of keys on a small wooden table. When Trainum overheard Sergeant James Vucci complaining about a padlock he could not open on a closet door, Trainum brought the keys from the Derr bedroom to try on the padlock; one of them worked the lock. Sergeant Vucci then searched the closet. Atop a pile of miscellaneous items--a rolled-up rug, stereo equipment, personal papers--Vucci came upon an unloaded, holstered .357 Magnum revolver and a plastic bag containing nine rounds of .357 ammunition. Directly under the gun and bullets was another plastic bag containing both Derr's birth certificate and a padlocked wooden box. Using the same set of keys, the officers unlocked the box and found inside 18.4 grams of crack cocaine as well as paraphernalia for drug distribution--many small ziplock bags, a wad of about $1100 in cash, a glass plate, and a small portable scale. A carrying case and a cleaning kit for a .9 millimeter gun were also discovered on a nearby closet shelf.

The closet was not, however, the sole source of drug trafficking evidence in the apartment. The officers' search of James Lanham's room turned up a rock of cocaine, as well as a triple-beam scale, two rounds of live .357 Magnum ammunition, and a pager. (James Lanham was charged with possession of that cocaine and pled guilty in the Superior Court of the District of Columbia.) Additionally, in the apartment's common areas the officers discovered several pouches of fake cocaine--commonly known as "burn bags"--as well as a crack pipe, a plastic razor blade case, and numerous syringes.

At the conclusion of their search, the officers arrested Derr. Having been told to get dressed to go to the police station, Derr returned to the bedroom where he was originally found, grabbed some clothes out of a trunk and the bedroom closet, and put them on. Then, according to Detective Trainum, Derr "reached over to the table as if he was going for the keys" (which had been returned to their original location) Derr was later charged with possession of more than five grams of cocaine with intent to distribute and using a firearm during and in relation to his possession of the drugs. At trial, the government sought to establish Derr's possession of the contraband through the police officers' testimony that his birth certificate was found in the same bag as the drugs and directly beneath the gun, that the keys to the hall closet and the wooden box were discovered in the room where Derr was sleeping, and that he made a motion to grab those keys as he was leaving the apartment. Hilda Meredith, the lessee of the apartment and the grandmother of the Lanham brothers and Chay Rawls, also testified for the prosecution. She claimed that, in 1990, Derr "took possession" of the hall closet by putting a new padlock on the door. Finally, to show that Derr "used" the .357 Magnum in relation to possession of the drugs, the government offered expert testimony from Officer David Stroud that that weapon is the revolver of choice among drug traffickers and that such a gun is often employed to guard a trafficker's "turf," keep his employees in line, and protect him from hold-up men.

[301 U.S.App.D.C. 63] but abruptly "stopped, pulled his hand back, and began to walk out of the room."

At the close of the prosecution's case, Derr moved, unsuccessfully, for acquittal. He then mounted a defense designed to show that he was simply in the "wrong place at the wrong time" and that the drugs in question belonged to the Lanham brothers. To that end, Derr highlighted the fact that cocaine and drug paraphernalia were found in James Lanham's room and in common areas of the apartment. Derr himself testified that he did not live in the apartment, that he had no key to it, and that on the day he was arrested, he had arrived at the apartment only hours before the police and was in Michael Lanham's room, waiting for him to return home. Finally, Derr explained away the damning fact that his birth certificate was found in the plastic bag with the drugs by saying that he had lost the document a month earlier at a party at the apartment and had not seen it since.

At the close of his own case, Derr again moved unsuccessfully for acquittal. The jury subsequently convicted him on both counts.

II. DISCUSSION

A. Limitations on Cross-Examination

On April 4, 1991, several months after Derr's arrest in January and shortly before his trial, a second search under warrant of apartment 22 turned up 25 grams of cocaine, drug paraphernalia, and large amounts of cash. As a result of that search, all three of Hilda Meredith's grandchildren--Chay Rawls, James Lanham, and Michael Lanham--were arrested and charged with conspiracy to possess cocaine as well as possession of cocaine with intent to distribute. In cross-examining Meredith at Derr's trial, his attorney sought to question her about those later arrests to establish a motive on her part for testifying that Derr alone had access to the hall closet at the time of the first arrest. More specifically, Derr's counsel sought to suggest by the later drug arrests that the narcotics found in the closet earlier may have belonged to the grandsons, not Derr, and thus that Meredith had a strong incentive to direct suspicion away from her own family members and onto Derr. ² The district court, however, cut off this line of questioning, reasoning that the lapse of time between Derr's January arrest and the grandchildren's April arrests vitiated any relevance of the latter to the grandchildren's We do not think so. As the Supreme Court has explained, the Confrontation Clause does not bar a judge from imposing reasonable limits on a defense counsel's inquiries: "[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on ... cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986). Accordingly, Confrontation Clause violations are found primarily where defendants have been given no realistic opportunity to ferret out a potential source of bias. See, e.g., id. (violation found where "trial court prohibited all inquiry into the possibility that [the prosecution witness] might be biased" because of the state's dismissal of his pending public drunkenness charge) (emphasis in original); United States v. Pryce, 938 F.2d 1343, 1345 (D.C.Cir.1991) (violation found where court "barred defense counsel from asking any questions about [witness'] hallucinations") (emphasis in original), cert. denied, --- U.S. ----, 112 S.Ct. 1488, 117 L.Ed.2d 629 (1992) (appellant Donovan), cert. denied, --- U.S. ----, 112 S.Ct. 1679, 118 L.Ed.2d 396 (1992) (appellant Thomas). Conversely, courts usually deny such claims so long as defense counsel is able to elicit enough information to allow a "discriminat[ing] appraisal of the witness's motives and bias." United States v. Robinson, 832 F.2d 366, 373 (7th Cir.1987) (internal quotation omitted), cert. denied, 486 U.S. 1010, 108 S.Ct. 1739, 100 L.Ed.2d 203 (1988); see also United States v. Boylan, 898 F.2d 230, 254 (1st Cir.) ("So long as a reasonably complete picture of the witness' veracity, bias, and motivation is developed, the judge enjoys power and discretion to set appropriate boundaries. Indeed, the...